Citation Nr: 0330256
Decision Date: 11/04/03 Archive Date: 11/13/03
DOCKET NO. 02-12 522 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for emphysema.
2. Whether new and material evidence has been received to
reopen a claim for service connection for a psychiatric
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from November 1970 to May
1972.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a January 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Louisville, Kentucky (RO), which denied service connection
for emphysema and found that new and material evidence had
not been received to reopen the veteran's claim for service
connection for a psychiatric disability.
The Board decision below reopens the claim for service
connection for a psychiatric disability. The appended remand
further addresses this issue.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. A final June 1990 rating decision denied service
connection for a psychiatric disability.
3. Evidence added to the record since the June 1990 rating
decision is relevant and, when viewed in conjunction with the
evidence previously of record, is so significant that it must
be considered in order to fairly decide the merits of the
claim for service connection for a psychiatric disability.
4. The only competent evidence of emphysema of record is
dated many years after service, a subsequent X-ray
examination failed to confirm the diagnosis, and there is no
medical evidence that causally links claimed emphysema to the
veteran's service.
CONCLUSIONS OF LAW
1. Evidence received since the June 1990 rating decision
denying service connection for a psychiatric disability is
new and material, and the claim is reopened. 38 U.S.C.A. §§
5102, 5103, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §
3.156(a) (2003).
2. Service connection for emphysema is not warranted. 38
U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to assist the appellant in the development of
facts pertinent to his claim. There has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). This law redefines the obligations of
VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b)
(2003). Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. See 66 Fed. Reg. 45620, 45,630
(August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2003). Second,
VA has a duty to assist the appellant in obtaining evidence
necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159(c) (2003).
As the caselaw relating to the applicability of VCAA to
claims that were filed prior to its enactment, such as the
one that is currently before the Board on appeal, has been
somewhat inconsistent, a brief summary of the law follows.
VCAA was enacted on November 9, 2000, and was subsequently
codified, in pertinent part, at 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107. VA has issued final regulations to implement
these statutory changes. See C.F.R. §§ 3.102, 3.159 and
3.326(a) (2003).
The U.S. Court of Appeals for Veterans Claims (Court) has
held that the entire VCAA potentially affects claims pending
on or filed after the date of enactment (as well as certain
claims that were finally denied during the period from July
14, 1999, to November 9, 2000). See generally Holliday v.
Principi, supra; see also Karnas v. Derwinski, 1 Vet. App.
308 (1991). That analysis would include cases which had
been decided by the Board before the VCAA, but were pending
in Court at the time of its enactment. However, the Federal
Circuit has held that only section 4 of the VCAA (which
eliminated the well-grounded claim requirement) is
retroactively applicable to decisions of the Board entered
before the enactment date of the VCAA, and that section 3(a)
of the VCAA (covering duty-to-notify and duty-to-assist
provisions) is not retroactively applicable to pre-VCAA
decisions of the Board. See Dyment v. Principi, 287 F.3d
1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795
(Fed. Cir. 2002) (stating that Dyment "was plainly
correct"). In a more recent decision, Kuzma v. Principi,
No. 03-7032 (Fed. Cir. Aug. 25, 2003), the Federal Circuit,
quoting Supreme Court precedent, noted that "congressional
enactments and administrative rules will not be construed to
have retroactive effect unless their language requires this
result." Landgraf v. USI Film Prods., 511 U.S. 244, 272
(1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 208 (1988)). As previously held in Dyment and
Bernklau, there is nothing in the VCAA to suggest that
section 3(a) was intended to apply retroactively.
Accordingly, applying Karnas to section 3(a) of the VCAA,
which makes no mention of retroactivity, would impermissibly
require its retroactive application. Further, Holliday's
holding that all provisions of the VCAA have retroactive
effect is incompatible with Dyment and Bernklau. While both
Karnas and Holliday were not explicitly, but rather only
implicitly, overruled in those cases, the Court held that
"[t]oday we remove all doubt and overrule both Karnas and
Holliday to the extent they conflict with the Supreme
Court's and our binding authority."
Although the Federal Circuit appears to have reasoned that
the VCAA may not retroactively apply to claims or appeals
pending on the date of its enactment, Karnas and Holliday
are only overruled "to the extent they conflict with the
Supreme Court's and our binding authority." (Emphasis
added). In other words, the decisions were not, or
apparently not, overruled outright, but rather only to the
extent they conflict with Supreme Court and Federal Circuit
precedent. The Board further notes that the Federal Circuit
in Bernklau only addressed the limited matter of whether
section 3(a) of the VCAA applies retroactively to
proceedings that were complete before VA and were on appeal
to the Veterans Claims Court or the Federal Circuit, and not
whether applying section 3(a) to proceedings already
commenced at the time of the enactment of the VCAA and still
pending before the regional offices or the Board would
constitute "retroactive" application of the statute.
Moreover, VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold
that the VCAA is retroactively applicable to claims pending
on the date of its enactment. Further, the regulations
issued to implement the VCAA are expressly applicable to
"any claim for benefits received by VA on or after November
9, 2000, the VCAA's enactment date, as well as to any claim
filed before that date but not decided by VA as of that
date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent
opinions of the chief legal officer of the Department, and
regulations of the Department, are binding on the Board. 38
U.S.C.A. § 7104(c) (West 2002).
Therefore, for purposes of the present case, the Board will
assume that the VCAA is applicable to claims or appeals
pending before the RO or the Board on the date of its
enactment. Thus, compliance is required with the notice and
duty to assist provisions contained in the new law. As
discussed in more detail below, sufficient evidence is of
record to reopen the veteran's claim for service connection
for a psychiatric disability and the Board is undertaking
additional development pursuant to the VCAA to assist the
veteran with this claim, as described in the appended remand.
Turning to the veteran's claim for service connection for
emphysema, the Board finds that VA's duties to the veteran
under the VCAA have been fulfilled. First, VA has a duty to
notify the veteran of any information and evidence needed to
substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and
5103. The Board concludes that the discussions in the
January 2002 rating decision and the August 2002 SOC
adequately informed him of the information and evidence
needed to substantiate his claim. The Board finds that
correspondence sent to the veteran in August 2002, as well as
the June 2001 SOC, informed him of the VCAA and its
implementing regulations, including that VA would assist the
veteran in obtaining government or private medical or
employment records, provided that the veteran sufficiently
identified the records sought and submitted releases as
necessary. Thus, the Board finds that the veteran was
notified and aware of the evidence needed to substantiate his
claim and the avenues through which he might obtain such
evidence, and of the allocation of responsibilities between
himself and VA in obtaining such evidence. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. In this case, the RO has obtained the veteran's
service medical records and post-service medical records.
The veteran has not indicated there are additional service or
post-service medical records available to substantiate his
claim.
Notations in the claims file provide that the veteran failed
to report for examinations in February 1999, August 1999 and
June 2001. The veteran stated in April 2002 correspondence
that he had been scheduled for a VA examination before the
January 2002 rating decision but could not report because he
was incarcerated. When a veteran is incarcerated, VA may
have a heightened duty to assist him in obtaining necessary
evidence. See generally Wood v. Derwinski, 1 Vet. App. 406
(1991); Bolton v. Brown, 8 Vet. App. 185 (1995) (observing
that VA should ensure that given the circumstances, an
incarcerated veteran should be accorded the same assistance
as his fellow, non-incarcerated veterans). In this regard,
the Board observes that the veteran was scheduled for VA
general medical and psychiatric examinations in August 2002.
The notices were sent to the correct address and the veteran
failed to report. The veteran also failed to report for a
September 2003 Travel Board hearing before a Veterans Law
Judge. Although the veteran's representative stated in the
October 2003 written brief presentation that there was
evidence indicating the possibility that the veteran might be
incarcerated, there is no evidence (such as the veteran's own
testimony or VA correspondence returned as undeliverable)
suggesting that he failed to report to his 2002 VA
examinations and 2003 Travel Board hearing due to
incarceration.
As to any duty to provide an examination and/or obtain an
opinion addressing the question of whether the claimed
emphysema began during or is causally linked to service, the
Board notes that in the case of a claim for disability
compensation the assistance provided to the claimant shall
include providing a medical examination or obtaining a
medical opinion when such examination or opinion is necessary
to make a decision on the claim. An examination or opinion
shall be treated as being necessary to make a decision on the
claim if the evidence of record, taking into consideration
all information and lay or medical evidence (including
statements of the claimant) contains competent evidence that
the claimant has a current disability, or persistent or
recurring symptoms of disability; and indicates that the
disability or symptoms may be associated with the claimant's
act of service; but does not contain sufficient medical
evidence for VA to make a decision on the claim. See § 3 of
the VCAA (codified as amended at 38 U.S.C. § 5103A(d)); 66
Fed. Reg. at 45,626-45,627, 45,631 (codified as amended at 38
C.F.R. § 3.159(c)(4)).
With no objective medical evidence to show emphysema during
the veteran's service, and no diagnosis of or findings
attributable to emphysema until nearly two decades post-
service, any nexus opinion regarding this claim at this late
stage would be speculative. Arguably, 38 U.S.C. § 5103A
mandates a nexus opinion when there is pertinent abnormal
clinical or laboratory findings recorded during or proximate
to service (i.e., a pertinent abnormal finding that is
attributed to or at least suggestive of the disability at
issue sometime short of the amount of time that has elapsed
between service and the initial diagnosis in this case) and
competent post-service evidence of the claimed disability.
Here, while there has been one post-service diagnosis of
emphysema, there is no medical evidence of emphysema during
service or until many years later. A clinician would have no
means of linking any current emphysema to the veteran's
service other than pure speculation. Under these
circumstances, there is no duty to provide an examination or
opinion with regard to the claims on appeal. Id.; see also
Wells v. Principi, No. 02-7404 (Fed. Cir. April 29, 2003).
The Board notes that in a decision promulgated on September
22, 2003, Paralyzed Veterans of America (PVA) v. Secretary of
Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003), the United States Court of Appeals for the
Federal Circuit (Federal Circuit) invalidated the 30-day
response period contained in 38 C.F.R. § 3.159(b)(1) as
inconsistent with 38 U.S.C.§ 5103(b)(1). The Federal Circuit
made a conclusion similar to the one reached in Disabled Am.
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003) (reviewing a related Board regulation,
38 C.F.R. § 19.9). The Federal Circuit found that the 30-day
period provided in § 3.159(b)(1) to respond to a VCCA duty to
notify is misleading and detrimental to claimants whose
claims are prematurely denied short of the statutory one-year
period provided for response.
In the instant case, a June 2001 letter from the RO informed
the veteran of the VCAA, as well as a 60-day period in which
to submit new evidence. The August 2002 statement of the
case (SOC) informed the veteran of the VCAA as well as the
30-day period provided in § 3.159(b)(1). In a July 2003 VA
Form 646, the veteran's representative certified that the
veteran desired appellate review based on the evidence of
record and did not identify any sources of additional
outstanding evidence, or indicate that the veteran was in the
process of obtaining additional evidence. The veteran failed
to report for a September 2003 travel board hearing by a
Veterans Law Judge sitting at the RO, during which he would
have had the opportunity to identify any sources of
additional outstanding evidence or indicate that he was in
the process of obtaining additional evidence. In an October
2003 brief, the veteran's service organization failed to
identify any sources of additional outstanding evidence, or
indicate that the veteran was in the process of obtaining
additional evidence. The veteran has been requested and has
been afforded opportunities to submit information relating to
any additional evidence that may be available on numerous
occasions over the past several years; it is clear that there
is no additional relevant evidence that has not been obtained
and that the veteran desires the Board to proceed with its
appellate review.
Based on the foregoing, the Board finds that, in the
circumstances of this case, any additional development or
notification would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the claimant); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the claimant are to be avoided);
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there
is extensive factual development in a case, reflected both in
the record on appeal and the Board's decision, which
indicates no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, this Court has concluded that the VCAA does not
apply). Thus, the Board finds that the duty to assist and
duty to notify provisions of the VCAA have been fulfilled to
the extent possible. Thus, notwithstanding PVA, supra, no
additional assistance or notification to the veteran is
required based on the facts of the instant case, there has
been no prejudice to the veteran that would warrant a remand,
and his procedural rights have not been abridged. Bernard,
supra.
Factual Background
The veteran continues to maintain that he now has a
psychiatric disability, due to or causally related to his
active duty. He also maintains that he now has emphysema,
due to or causally related to his active duty. He was on
active duty for less than two years and he does not
specifically relate his claimed emphysema to nicotine
addiction.
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49
(2001) (a discussion of all evidence by the Board is not
required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
The veteran's service medical records consist only of reports
of his entrance and separation examinations and medical
histories. The veteran's April 1972 separation report of
medical history indicates that he denied complaints of
asthma, shortness of breath, chronic cough, or pain or
pressure in the chest. The report of the veteran's April
1972 separation medical examination provides that his lungs
and chest were normal on clinical examination. A chest X-ray
was negative and there were no mental or physical defects
noted.
The claims file contains private and VA post-service medical
records. A September 1980 private admission history and
discharge summary provides that the veteran complained of
depression and suicidal feelings. The Axis I diagnosis was
dysthymic disorder and alcohol abuse continuous. The report
of a March 1990 VA general medical examination provides that
on respiratory examination, the veteran had slightly
increased AP diameter with poor excursion and clear lungs.
Final diagnoses included evidence of mild emphysema and
history of nervous condition.
A June 1990 rating decision denied service connection for a
psychiatric disability. The rating decision was based on the
veteran's service medical records, the September 1980
admission history and discharge summary and the March 1990 VA
examination report. The rating decision found that there was
no evidence of a psychiatric disorder in service or of active
psychosis within one year of separation, and that the
veteran's major disability stemmed from alcoholism, which was
noted to be of misconduct origin. The veteran did not appeal
the rating decision and it became final.
Evidence received after the June 1990 rating decision
includes the report of a private September 1995 X-ray of the
veteran's chest, which revealed a calcified granuloma in the
upper left lung with the lungs being otherwise clear. The
heart and hilar structures were normal and no acute
abnormality was seen. A private physical examination in
September 1995 found that the veteran's lungs were resonant
and there were no rales. No pertinent impression was
provided.
A September 1996 Social Security Administration (SSA)
decision found that the veteran was disabled as of February
1985, with a primary diagnosis of organic mental disorders
(chronic brain syndrome) and a secondary diagnosis of seizure
disorder. Records submitted with the SSA determination
include the report of a September 1996 private psychiatric
examination, conducted in connection with his application for
SSA benefits, providing that the veteran met the criteria for
organic mental disorders and substance addiction disorders.
Evidence of the organic mental disorder was disorientation to
time and place, memory impairment, disturbance in mood,
emotional lability and impairment in impulse control. A
private December 2000 consultation report provides that the
veteran had organic brain disorder.
Notations in the claims file provide that the veteran failed
to report for examinations in February 1999, August 1999,
June 2001 and August 2002.
Legal Analysis
New and Material Evidence
The June 1990 rating decision denying service connection for
a psychiatric disability is final and is not subject to
revision on the same factual basis. See 38 U.S.C.A. § 7104
(West 2002). In order to reopen this claim, the veteran must
present or secure new and material evidence with respect to
the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
Despite the finality of a prior decision, a claim will be
reopened and the former disposition reviewed if new and
material evidence is presented or secured with respect to the
claim which has been disallowed. 38 U.S.C.A. § 5108; 38
C.F.R. § 3.156(a). The Court has held that, when "new and
material evidence" is presented or secured with respect to a
previously and finally disallowed claim, VA must reopen the
claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
The provisions of 38 C.F.R. § 3.156(a), provide that "new and
material evidence" is evidence not previously submitted which
bears directly and substantially upon the specific matter
under consideration, is not cumulative or redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. Furthermore,
the Federal Circuit has indicated that evidence may be
considered new and material if it contributes "to a more
complete picture of the circumstances surrounding the origin
of a veteran's injury or disability, even where it will not
eventually convince the Board to alter its ratings decision."
Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998).
Regulations adopted by VA implementing VCAA include changes
to the standard for determining new and material evidence
under 38 C.F.R. § 3.156(a), and provides for limited
assistance to claimants seeking to reopen previously denied
claims. However, these changes are applicable only to claims
to reopen filed on or after August 29, 2001. The veteran's
pending claim was filed prior to that date and these changes
are not applicable in this case.
The Board observes that what was missing at the time of the
June 1990 rating decision was competent medical evidence of a
psychiatric disorder in service, or competent medical
evidence linking the veteran's post-service dysthymia to
service.
The Board first finds that the September 1996 examination
report that the veteran met the criteria for organic mental
disorders, and the December 2000 consultation report
providing that the veteran had organic brain disorder, are
new within the meaning of the cited legal authority. They
are not cumulative of evidence considered by the June 1990
rating decision and they are relevant to the claim for
service connection for a psychiatric disability.
The Board also finds that the new evidence is material,
because it provides a more complete picture, within the
meaning of Hodge, supra. The reports constitute competent
medical evidence that the veteran has a post-service
psychiatric disability, in addition to dysthymia. When
viewed with the evidence already of record (i.e., the
September 1980 diagnosis of dysthymic disorder and the March
1990 diagnosis of history of nervous condition), they provide
a more complete picture of the circumstances surrounding the
veteran's claimed psychiatric disability. The Federal
Circuit has clearly stated that new and material evidence
does not have to be of such weight as to change the outcome
of the prior decision. Hodge, supra. The Board finds that
the new medical evidence, consisting of the September 1996
examination report and the December 2000 consultation report,
are significant enough that they must be considered in order
to fairly decide the merits of the veteran's claim.
Therefore, they are new and material evidence within the
meaning of 38 C.F.R. § 3.156(a). Accordingly, the Board is
required to reopen the previously denied claim of service
connection for a psychiatric disability.
Service Connection
A claimant with active service may be granted service
connection for disease or disability either incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304.
The disease entity for which service connection is sought
must be "chronic" as opposed to merely "acute and transitory"
in nature. For the showing of chronic disease in service,
there is required a combination of manifestations sufficient
to identify the disease entity and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. Where the fact of chronicity in
service is not adequately supported then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for emphysema. The
veteran has not alleged any treatment for emphysema during
service. The veteran's separation medical history and
examination reports are negative for complaints, symptoms,
findings or diagnoses relating to lung disease, including
emphysema.
The post-service medical evidence is conflicting as to
whether the veteran even has emphysema. Although the March
1990 VA examination report provides a diagnosis of mild
emphysema, September 1995 radiographic and physical
examinations were negative for emphysema. Even assuming that
the veteran currently has emphysema, the fact remains that
the first and only diagnosis was made nearly 18 years after
the veteran's separation from service and it was reported as
mild at that time. The Federal Circuit has determined that a
significant lapse in time between service and post-service
medical treatment may be considered as part of the analysis
of a service connection claim. See generally Maxson v.
Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the
Board finds that there is no medical evidence of in-service
treatment and the approximately 18-year lapse between the
veteran's separation from service and his sole diagnosis of
emphysema weighs against the veteran's claim for service
connection. The fact that the contemporaneous records do not
provide subjective or objective evidence that supports the
onset of emphysema during or proximate to service is highly
probative evidence against the claim. See Mense v.
Derwinski, 1 Vet. App. 354, 356 (1991).
The Board also observes that there is no medical evidence
showing a nexus or link between the veteran's post-service
diagnosis of emphysema and his service, such as a medical
opinion linking them, based on a review of the record. The
Board recognizes the veteran's own assertions as to such a
nexus. However, as a layperson, he is not competent to
provide an opinion requiring medical knowledge, such as a
question of medical causation. Espiritu, supra. Thus, his
own assertions do not constitute medical evidence linking his
post-service diagnosis of emphysema to his service.
Finally, the veteran has not contended, and there is no
evidence showing, that he experienced full body exposure to
nitrogen or sulfur mustard or Lewisite during active military
service. As a result, service connection for emphysema is
not presumed under 38 C.F.R. § 3.316(a)(2) (2003).
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not for application.
See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
ORDER
New and material evidence having been received, the veteran's
claim for service connection for a psychiatric disability is
reopened; to this extent only, the appeal is granted.
Service connection for emphysema is denied.
REMAND
Having determined that the veteran's claim of entitlement to
service connection for a psychiatric disability has been
reopened, the claim must be considered de novo. In addition
to any evidentiary development that the RO considers
necessary, the RO must assure that the veteran has been
provided VCAA notification which is in accord with the
Federal Circuit's holding in Paralyzed Veterans of America
(PVA) v. Secretary of Veterans Affairs, No. 02-7007, -7008, -
7009, -7010 (Fed. Cir. Sept. 22, 2003).
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO must assure compliance with
the requirements of the VCAA, codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 and its implementing
regulations. The RO's attention is
directed to Quartuccio v. Principi, 16
Vet. App. 183 (2002) pertaining to the
amended version of 38 U.S.C.A.§ 5103(a),
which requires that the Secretary
identify for the veteran which evidence
the VA will obtain and which evidence the
veteran is expected to present. The RO
should provide the veteran written
notification specific to his claim of the
impact of the notification requirements
on his claim. The veteran must also be
notified that he has one year to submit
evidence. 38 U.S.C.A. § 5103(b)(1); PVA,
supra.
2. Thereafter, the RO should review the
claims file and ensure that no other
notification or development action, in
addition to that directed above, is
required. If further action is required,
the RO should undertake it before further
adjudication of the claim.
3. Then, the RO should readjudicate the
veteran's claim for entitlement to service
connection for a psychiatric disability. If
the benefit sought on appeal remain denied,
the veteran should be provided with an SSOC.
The SSOC should contain notice of all
relevant actions taken on the claim, to
include a summary of any evidence received
subsequent to the August 2002 Statement of
the Case. An appropriate period of time
should be allowed for response.
The Board does not intimate any opinion as to the merits of
the case, either favorable or unfavorable, at this time. No
action is required of the veteran until he is notified. The
veteran and his representative have the right to submit
additional evidence and argument on the matters remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38
U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and
38.02-38.03.
______________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2